Chief Officer, Office of the Licensing Authority
Home Affairs Department

Attendance by Invitation :

Item II

The Law Reform Commission of Hong Kong

The Hon Mr Justice MORTIMER

Chairman, Sub-committee on Privacy

Dr John BACON-SHONE

Member, Sub-committee on Privacy

Mr Peter SO Lai-yin

Member, Sub-committee on Privacy

Mr WONG Kwok-wah

Member, Sub-committee on Privacy

Mr Stuart STOKER

Secretary, Law Reform Commission

Mr KAN Ka-fai, Godfrey

Secretary, Sub-committee on Privacy

Item IV

Equal Opportunities Commission

Dr Fanny CHEUNG

Chairperson

Mrs Angela HO

Chief Executive

Miss Alexandra PAPADOPOULOS

Legal Adviser

Clerk in Attendance :

Mrs Constance LI

Chief Assistant Secretary (2) 2

Staff in Attendance :

Mr Stephen LAM

Assistant Legal Adviser 4

Miss Flora TAI

Senior Assistant Secretary (2) 2

I.Confirmation of minutes of meeting(LC Paper No. CB(2)77/98-99)

The minutes of meeting held on 14 July 1998 were confirmed.

II.Consultation paper on "stalking" prepared by the Privacy Sub-committee of the Law Reform Commission (LRC)

2. The Chairman of the Privacy Sub-committee of LRC (CSP) briefed members on the thinking behind the report on stalking behaviour prepared by the Privacy Sub-committee. He pointed out that at present stalking was not a criminal offence nor a tort at law in Hong Kong, and that stalking was often not amenable to the Domestic Violence Ordinance (Cap. 189). As such, remedies were not readily available to victims of stalking behaviour. While there were no statistics on the prevalence of stalking in Hong Kong, the Privacy Sub-committee was convinced that stalking was a problem and that anti-stalking legislation was necessary to protect victims from violent stalking behaviour.

Press freedom

3. A member said that she was inclined to support legislation against stalking behaviour especially that involving domestic violence. Nevertheless, she was concerned that anti-stalking legislation might hamper normal news gathering activities of reporters. CSP responded that the Privacy Sub-committee was well aware of the need to ensure that the law would not put in jeopardy the freedom of others to pursue legitimate activities. The report therefore recommended that it would be a defence for the defendant who was charged with the offence of harassment to show that -

the conduct was pursued for the purpose of preventing or detecting crime;

the conduct was pursued under lawful authority; or

the pursuit of the course of conduct was reasonable in the particular circumstances.

CSP said that he did not see any particular problem with legitimate news gathering activities as press freedom was fundamental to the society. The Privacy Sub-committee would welcome comments from the Journalists' Association on the proposal for anti-stalking legislation. He also noted the member's suggestion that the proposed legislation should be carefully drafted in order not to hamper normal news gathering activities.

Merits of anti-stalking legislation

4. Referring to paragraph 4.3 of the report, a member asked how anti-stalking legislation could ensure simple, quick, inexpensive and effective procedures for victims of stalking behaviours to obtain remedies. CSP explained that criminalizing stalking behaviour would enable the Police to take prompt action to protect the victim from further harassment. The stalker could be arrested and brought to court if the behaviour was repeated and caused alarm or distress to the victim. A court sentencing a stalker who was convicted of harassment could issue a restraining order to protect the victims from further harassment by the stalker. Noting that victims could also make ex parte applications to the court under civil law for an injunction order against stalking behaviour, a member asked why civil law was considered inadequate to deal with stalking behaviour. In response, CSP stressed that criminalizing stalking could enable law enforcement agencies to take prompt action and facilitate access to the court for immediate and effective actions to protect the victims.

5. Some members agreed that there was definitely an urgency to legislate against abusive debt-collection practices and domestic violence, but they questioned the need and effectiveness to criminalize stalking behaviour which had less serious impact. A member expressed concern that the proposed legislation might cast the net too wide by criminalizing cases which could more appropriately be resolved by other means such as counselling. Examples of the less serious cases included repeated attempts made by ex-lovers to remedy the relationship. In the absence of statistics on the prevalence of stalking behaviour in Hong Kong, another member asked if the recommendation of anti-stalking legislation was based primarily on legal principles rather than empirical evidence.

6. Responding to members' concern, CSP said that while it was difficult to define 'stalking behaviour', the essence of 'stalking' was that the behaviour occurred repeatedly and had the effect of causing alarm or distress to the victim. The court would apply the test of reasonableness in making the judgement. In this connection, the Secretary of the Privacy Sub-committee advised that there was no evidence that other jurisdictions had difficulties in enforcing anti-stalking legislation. On the need to introduce anti-stalking legislation, CSP said that the recommendation was not based simply on legal policy considerations. The Privacy Sub-committee was convinced that stalking could have a serious impact on the private life and safety of individuals, and that this should be adequately dealt with by law. Although legislation could not prevent stalking from the beginning, it would definitely help prevent further or continuous harassment by the stalker.

7. With regard to legislation against harassment of debtors by debt collection agencies and harassment of tenants by landlords, CSP said that as these were outside the terms of reference of the Privacy Sub-committee, the report recommended a separate review on these subjects by the Administration.

8. The Chairman thanked representatives of the LRC for attending the meeting.

III.Preparation of reports by the HKSAR on the implementation of the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)[Paper No. CB(2)81/98-99(01)]

9. At the invitation of the Chairman, Acting Secretary for Home Affairs (Ag SHA) briefed members on the paper which set out the framework, timetable, procedures and present position of the preparation of the Hong Kong Special Administrative Region's (HKSAR) upcoming reports under international human rights treaties.

Drafting the reports

10. Ag SHA assured members that the Administration aimed at producing impartial and comprehensive reports under the relevant international human rights treaties. There was no intention to conceal any negative aspects, for example, the medical incidents caused by human errors or negligence during the latter half of 1997 would be included under Article 12 (the right to health) in the First Report of HKSAR under ICESCR.

11. A member referred to Article 25 of the ICCPR (the right to election by universal and equal suffrage) which the HKSAR had reserved her right not to implement for the time being. He was of the view that the Administration should address this in its report and provide an explanation on the HKSAR's position regarding this Article. In response, Principal Assistant Secretary for Home Affairs 7 (PAS(HA)7) advised that the HKSAR reports would address comments made by the public and the treaty monitoring bodies. As regards Article 25 of ICCPR, the report would address the challenge made by the United Nations (UN) Committee on Human Rights about HKSAR's reservations in adopting this Article, as well as the criticisms on the election system.

12. Responding to some members' concern about the role of the Central People's Government (CPG) in the preparation of HKSAR reports under the human rights treaties, Ag SHA stressed that it was the understanding that CPG would not make any amendment to the content of the four reports being prepared by the HKSAR for submission to the United Nations (UN). Moreover, the CPG would not give suggestions or comments on the content of HKSAR reports.

13. A member asked about the criteria for adopting or not adopting certain views or comments submitted by the non-government organizations (NGO) during public consultation on the reports. Ag SHA responded that the Home Affairs Bureau (HAB) had received 11 detailed submissions on the ICCPR and ICESCR report outline. HAB would carefully consider the views in each submission in consultation with the relevant Bureaux. As regards the member's suggestion of explaining to each NGO the reasons for not adopting their views in the report, Ag SHA said that this might not be practicable as the three-member team in HAB was already subject to a very tight timetable in drafting the reports. Moreover, the HKSAR reports would be published after submission to the UN and that NGOs could also make written submissions to and attend hearings of the relevant UN committees. Notwithstanding the Administration's response, the member maintained the view that HAB should explain to those NGOs the reasons for not incorporating their comments before submission of the reports. Ag SHA noted the suggestion.

14. Another member also suggested the Administration to highlight or summarize in the report the status of past recommendations made by the treaty monitoring bodies. Ag SHA said that the information would definitely be included under the respective Articles and he undertook to examine how best to present such information for easy reference.

Adm

15. As regards the role of HAB in the preparation of human rights reports, PAS(HA)7 said that the Bureaux's role was not, as a member had suggested, simply and uncritically to present the contributions submitted by other Bureaux. It expended considerable time and effort ensuring that contributions were coherent, conformed with UN drafting standards and addressed comments made by the treaty monitoring bodies and local commentators. As HAB was not a 'super bureau', it had no remit to change the policies of other Bureaux. However, HAB could and did ensure that those policies were explained in relation to the requirements of the treaties and domestic human rights provisions. Ag SHA added that HAB had an independent role to play in compiling these reports and would make suggestions to the Bureaux concerned on additions or alterations. Referring to the Administration's reply, the Deputy Chairman remarked that HAB in fact played a coordinating rather than monitoring role in overseeing the implementation of UN human rights treaties in Hong Kong.

Reporting processes and timetable for submission of reports

16. In response to members, Ag SHA informed the Panel that as the People's Republic of China (PRC) was not yet a state party to the ICCPR and ICESCR, HKSAR reports under these convenants would not need to be forwarded to CPG. The current timetable was for the HKSAR Government to forward the reports under ICCPR and ICESCR to the Office of the Ministry of Foreign Affairs (MFA Office) in late August and late September respectively. The MFA Office would then send the reports to the Chinese Permanent Mission to the UN for onward transmission to the UN Secretary General. A member asked whether the Administration had ever considered seeking delegation of authority from CPG for HKSAR to forward its reports directly to the UN, in order to fully demonstrate the "One Country Two Systems" principle. Ag SHA explained that under UN procedures, the responsibility for submitting these reports rest with the sovereign countries concerned. Arrangements had been made for the ICCPR and ICESCR reports of HKSAR to route through the Chinese Permanent Mission to the UN instead of CPG.

17. On the reporting arrangements under other UN human rights treaties, Ag SHA said that PRC was a state party to CEDAW, the Convention on the Rights of the Child, the International Convention on the Elimination of All Forms of Racial Discrimination, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment. The HKSAR Government would therefore send the reports to the MFA Office for onward transmission to CPG. The HKSAR's report would be incorporated as a discrete section of PRC's report to the relevant UN Committees. He added that the HKSAR's report under CEDAW was near completion and would be forwarded to MFA Office in August.

Dates of UN hearings

18. Ag SHA advised that the relevant UN Committees would normally schedule hearings after receipt of reports from the state parties. Hearings in respect of CEDAW and ICCPR were tentatively scheduled to be held in early 1999. No information had been received on the hearing dates of ICESCR reports yet. In response to a member, Ag SHA said that should there be a considerable time gap between the submission of reports and the UN hearing, updated reports could be forwarded to the UN. Representatives of the HKSAR Government would attend the hearings and respond to questions raised. It was also possible that the HKSAR might be asked to provide supplementary information either before or after the hearings.

IV.Progress on the review of anti-discrimination legislation

Progress on review of the Sex Discrimination Ordinance (SDO) and the Disability Discrimination Ordinance (DDO)

[Paper No. CB(2)81/98-99(03)]

19. At the invitation of the Chairman, Chairperson of the Equal Opportunities Commission (CEOC) briefed members on the paper.

20. A member expressed concern that the scope of the review of SDO and DDO as described in the EOC paper did not include areas of deficiencies which were not within the existing legislation, or new areas which should be brought under the jurisdiction of the legislation. CEOC responded that this was in fact covered under the second area of the review, that is, "provisions of the legislation which had caused operational difficulties". At the suggestion of another member, CEOC also agreed to include in the report information on the number and nature of complaints received in the past twelve months.

CEOC

21.As regards the reason why the review would take one year to complete, Legal Adviser to the EOC (LA/EOC) explained that the review of anti-discrimination law in Hong Kong actually came much earlier than that in other countries, considering that the SDO and DDO had been put in place for only one year. She pointed out that the first review of the anti-discrimination legislation in the United Kingdom took place fifteen years after implementation, and the second review five years afterwards. As there was only twelve-months' operational experience in Hong Kong, it would be necessary to make reference to the overseas experience and developments in this field. Moreover, close examination of individual provisions in the legislation would be necessary to ascertain their impact on the community.

22. In response to members' enquiries about the review timetable and procedures, CEOC said that EOC commenced by reviewing the provisions of Schedule 5 of SDO in 1997 and started the review of substantive provisions in SDO and DDO in the beginning of 1998. It was expected that the review would be completed and recommendations drawn up for EOC's consideration by the end of this year. Following endorsement by EOC, the recommendations would be forwarded to the Chief Executive routing HAB. It would be for the Administration to decide whether public consultation would be conducted. Responding to Miss Christine LOH's comments that she would like to prepare a paper on the subject for EOC's consideration, CEOC advised that EOC would welcome views from outside parties, but as the review was now in its final stage, it might not be possible for EOC to include Miss Christine LOH's paper in the review.

23. Concerning the Administration's follow up action on the EOC review report, Ag SHA said that the Administration would consider the EOC recommendations and prepare legislative amendments as appropriate. In this connection, Miss Christine LOH said that she would prepare a paper for discussion by the Panel so that the Panel could formulate views to the EOC and the Administration.

Hon Christine LOH

Racial discrimination
[Paper No. CB(2)81/98-99(02)]

24. Members noted the Administration's paper which set out the developments in addressing issues raised since the 1997 consultation exercise on racial discrimination.

25. Referring to the recent press reports that operators of some bars and clubs had charged higher prices for non-white customers, a member asked the Administration about its position on the matter. In response, Ag SHA said that the Administration did not consider it appropriate to intervene in the legitimate commercial operations of bars and clubs so long as they were not in contravention of the law. As there were about 500 bars and clubs in Hong Kong, customers had the free choice in patronizing any bar or club and there was no question of monopoly by those bars which charged differential prices for different ethnic groups.

26. As regards the Administration's position on racial discrimination, Ag SHA explained that the Administration was aware that, as in other countries, racial discrimination might exist in Hong Kong. However, there was no evidence at present that the problem had become so serious that warranted legislation to outlaw racial discriminatory acts. He cautioned that anti-racial discrimination legislation might not be in the best interest of the whole community if the problem was not serious. It would be more appropriate to employ other measures to deal with the issue. He said that anti-discriminatory legislation was necessary in the United States of America and some European countries because of their historical background. In this connection, he quoted his personal experience overseas and a recent article in the Economist reporting racial discrimination in those overseas countries where anti-racial discrimination legislation had been put in place. He stressed that, as a responsible government, the Administration must consider the overall interests of the community and not just the interests of particular minorities. Ag SHA added that the Administration would continue its efforts in promoting racial equality through public education and self-regulation. The Administration would also shortly organize meetings with relevant non-government organizations, representatives of minority groups and other community organizations to ascertain whether there had been changes in their views or attitudes since the 1997 consultation. The Administration would take into account any specific examples of discrimination experienced by particular minorities in its considerations.

27. A member expressed disappointment at the Administration's response. She was of the view that the Government had the responsibility to protect the interests of the minorities, and that to legislate against racial discriminatory acts was in the overall interest of the community. Another member considered that racial discrimination was a very complex issue that required careful and detailed consideration before a sensible conclusion could be reached on whether legislation was justified. At his suggestion, members agreed to schedule a special meeting to further discuss with the Administration the subject of racial discrimination and to invite concerned organizations to the meeting.

28. Members noted the information paper on Hotel Accommodation (Miscellaneous Provisions) Bill 1998. Principal Assistant Secretary for Home Affairs 5 (PAS(HA)5) informed members that the Bill sought to amend the definition of "hotel" and "guesthouse" to the effect that establishments which offered accommodation to limited categories of persons and to guests only with prior reservations would fall within the jurisdiction of the Hotel and Guesthouse Accommodation Ordinance (the Ordinance) (Cap. 349).

29. In response to a member's enquiry, PAS(HA)5 confirmed that the proposed definition of "hotel" and "guesthouse" would exclude service apartments which offered accommodation on the basis of tenancy agreement for one month or more. The Secretary for Home Affairs could exempt this category of establishments from licensing by issuing an order under section 3 of the Ordinance.

30. A member pointed out that holiday flats were put under regulation of the Ordinance upon its enactment in 1991. He asked whether the Administration would consider excluding these holiday flats from the licensing scheme under the Ordinance, having regard to the fact that most of these holiday flats were situated in low-rise buildings and had lower fire risks. In response, PAS(HA)5 said that the Administration had considered the views of the holiday flats operators. Since such flats were low-rise, the Administration agreed that holiday flats should be subjected to slightly different licensing requirements according to their fire and building risks. In this connection, Chief Officer/Office of the Licensing Authority confirmed that less stringent licensing requirements would be imposed on holiday flats. At the member's request, PAS(HA)5 undertook to provide further information to the Panel highlighting the differences in licensing requirements for holiday flats and hotels/guesthouses.

31. With reference to the list of items for future discussion and members' suggestions at the meeting, members agreed to discuss the following at the next regular meeting scheduled for Monday, 14 September 1998 -

Long-term cultural policy

Sports development policy

32. It was also agreed that a special meeting would be scheduled for Tuesday, 22 September 1998 at 2:30 pm to discuss reports under the international human right treaties or the subject of racial discrimination.

(Post-meeting note : According to the Administration, the HKSAR's reports on CEDAW, ICCPR and ICESCR will likely be available for discussion after mid-October 1998 after submission to the UN. The special meeting scheduled for 22 September will therefore discuss the subject of racial discrimination.)

33. Members further agreed to include "Third Periodic Report on the HKSAR under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment" in the list of discussion items for future meetings.